1 F. 203 -

1 F1d 203

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Case Text

LIGGET! '" MYERS

TOBACOO

00. V. MILLER.

203

ficial end could be accomplished. No one in the then exist· ing state of the art could, by the use of any rolls known, or by any modes of operating the same, have effected the designed end. Consequently, to uphold this patent for a process which would have been ineffective without some inven· tions thereafter had, would be to block the path to all future progress in the art of milling. The necessary result is that I dismiss the bill, the patent being void for want of novelty, and uncertainty.

LIGGETT &,

'MYERS TOBACCO Co.

V.

MILLER and others.

(Circuit Oourt, E. D. Missouri.

March term. 1880.)

PATP.:NT-INTERFERING PATENTB-SEUVICE OF NOTICE OUTSIDE OF DI!\-

'l"H1cT.-In proceedings for relief against the owners of an interfering patent, under section 4918 of the Hevised Statutes, no provision is made for the service of notice upon parties outside of the district in which such proceedings have been instituted.

S. S. Boyd, for complainant. Hatch J: Stem and Winchester J: Beattie, for defendant" MCCRARY, J., (orally.) This is a proceeding under sectiot 4918 of the Revised Statutes of the United States, touching interfering patents. I will read the section in full : "Whenever there are interfering patents, any person interested in anyone of them, or in the working of the invention claimed under either of them, may have relief against the interfering patentee, and all parties interested under him, by suit in equity against the owners of the interfering patent; and the court, on notice to adverse parties, and other due proceedings had according to the course of equity, may adjudge and declare either of the patents void, in whole or in part, or inoperative or invalid in any particular part of the United States, according to the interest of the parties in the pntent or the invention patented. But 110 such judgment or adjurE. ration shall affect the right of any person except the parties to the suit, and those deriving title unuer them subsequent to the rendition of such judgment."

204:

FEDERAL RErORTEU.

When this case was brought to our attentioT',"111 the second day of February last, we held that the proceeding contemplated by this section was an ordinary proceeding in cluneery; that it was not a summary proceeding, but an uch"ersarJ' proceeding, in which the party must file the usual bill in chancery and issue the subprena required by the chancery praetice. In acconlance with that ruling counsel amended his bill so as to 111:tke it conform to the chancery practice, [mJ l'isllo,l t lu usual subpclJna, which has been served on the dofoml<mts who were within the district. He furthermore issued a ll,)tico wllie:l has be on served on pftrtiGS onlsitln of tho district. Tilo llotice / is n::; follow's, addressed to the several defcndants: "Plcase take notice that we have this day filed an amended hill in equity in the [J,bove entitled cause, under S'cetiOH 4·Hl.:', Rev. St. of the United Stated, praying, among otllcr thin,,is, that said court mfty f1Lljudg3 ;w:l H3-is.,ue Ptttent, Xo. SiJGO, g.'anted tilO ftbove namod J : nWLl':, 2:), A. D. lS7S, for 'Improvement in Fiulsbillg '1'0/),.ceo Plugs,' to be utterly nall awl void. "ltubpectfully, etc., "LIGGETT & I\1YER3IoDACCO Gu. "By S. B01:D, SolieitiJr." The qne3tion presented now is, and it is prosented roally for the ,;ecollll till12, whether in snch a e:L';O 11'; the complainant may depart fl'lHn the LlBmd ch:llwory lll'<lctiee, alul issue notice of tIllS cliametor to lie sl;nd olltslJe of the diBtrict. Counsel 11[1;3 very properly, I think, brought the matter ag:in lJefore us, for the reason that it was consiclered vory hurriedly on the former and for the further roason that he ought to 11:1ve tile question presented in it shape to Le rov10woc1 by the snpreme COUI't. Bllt, on :1 re-collsideration of the whole subject, we have reached the same conc1u<,J:! armuu:, I liofol'e. Nolet \V of (hG [ni: oj Statos rna 'es p"o\'isioll for tbo sorvice of any pL''Jeess oubide of the district. On the contrary, it is expressly pl'oviJed, by section 739 of the Revised StatllL,s, "except in tho cases proviuell illlOO 8ucl inil " jJ[) person slwll bo anes10d in onA in j:l '

LIGGETT & MY' HS TOBACCO CO. V. MILLER.

205

(listrict, for trial in another, in any civil action before a circuit or district court; and except in the said cases, and the cases provided by the preceding section, no civil suit shall be brought behre either )f said courts against an inhabitant of the United States, by any original process, in any other dishe is an inhabitant, or in which he trict than that of is found at the time of serving the writ." 1'his is not a Cfl,Se that comes within any exception to that rule. The exceptions are cases the subject-mntter is within the :jurisdiction of the court. i'row I don'1 think that section 1S is in telldoc1 to change th e practice so far as t, permit this court, by the issuing of a notice of this or any othor process, to bring before it citizens from any a 11 ! every part of the United States, to have their rights adjwlicated here. On the contrary, I think the section clearly COCltemplates tlJat the ordinary course of sltfl'l be pursued, awl that in many cases it will occur that on':: part of the persons interested will be brought before the court: for it prm'idcs, as you will observe, for a judgment whil:'1 "may declare either of the paJents Yoid in whole or in part, Dr inoperi'c"ive, or invalid in any particular part of the Unite(1 States, according to the interest of the parties in the patent :)1' the inyention patented;" and provides that "no such judgment or adjudic:ltion shall affect the right of any person, except the parties to the suit and those deriving title under them subsequent to the rendition of such jndgment." Now, the consequence of giving the statute the construction c.Qlltended by counsel for the complainant 'Tould, it seems to us, be very serious. This is a case of interference. The owner of a patent, residing in Maine, may, according to the {?onstrnction contended for, file his bill, and by issuing notice upon his oWn motion, and having it served, bring bel'ore the cO"<ut in that state parties residing in California. The parties interested in patents are often very numerous; they may be found in every state of til" Union, ancl may be, hy such a proceeding as this, b any p'1rticn!.ll' place where a complainant m:1Y sc:e iit to fi'o llis bill, if tile construction claimed is sustainc:d. 'Yo a,1ll\;:e to om funnel'

206

FEDERAL REPORTER.

ruling; but as the question is important I am glad thai counsel has presented it again, so that it may be reviewed, in case the supreme court is called to pass upon the matter. The motion is sustained. TREAT, J., concurred·

LEVI v.

.

COLUMBIA

LIFE

INS.

Co.

(Circuit Court, E. D. Missouri.

IN CUSTODY OF STATE COURT.- Where,

- , 1880.)

ltrnxsi>ICTION-EXECUTION-JUDGMENT IN FEDERAL COUIlT-l'ROPERTY

under the" Iusurauce Act" of the state of MissOuri, proceedings have been instituted in the state court against an insurance company, which finally result in the dissolution and administration of the affairs of that company, all intermediate proceedings must be finally disposed of in that tribunal, even though a valid and subsisting judh"Illent was obtained in the federal court against the company pending such administration.

Motion for execution and order on receiver of an insurance company, dissolved under proceedings in a state court, for the payment of a judgment obtained against such insurance company pending said proceedings in the state court. Given Campbell, for plaintiff. Pope It McGinness, for defendant. TREAT, J., (orally.) M. D. Lewis, public administrator, has filed his petition to have the judgment in favor of Levi revived; and notice thereof having been served on the receiver of the defendant, (dissolved,) the latter appeared, and, not objecting thereto, it was adjudged that said judgment be revived in the name of said administrator, Lewis. Thereupon a rule was entered upon said receiver to show cause why he should not pay the amount of said judgment, or why execution should not issue against the realty or assets of said dissolved corporation. To that rule said receiver has made an answer to tho following effect, viz: That said corporation was a 1vIissouri corporation; that on February 22, 1877, the superintendent of the insurance department filed in the proper sate court a petition for the dissolution, etc., of said corporation;